Appeal Under Section 13 Of The Tribunals, Courts And Enforcement Act 2007 By Aa Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lady Paton,Lord Drummond Young |
| Judgment Date | 28 June 2017 |
| Neutral Citation | [2017] CSIH 38 |
| Court | Court of Session |
| Docket Number | XA130/16 |
| Published date | 28 June 2017 |
| Date | 28 June 2017 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 38
XA130/16
Lord Justice Clerk
Lady Paton
Lord Drummond Young
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in the APPEAL
under section 13 of the Tribunals, Courts and Enforcement Act 2007
by
AA
Appellant;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Pursuer: Party
Respondents: McIlvride, QC; Office of the Advocate General for Scotland
28 June 2017
Introduction
[1] The appellant is a national of Nigeria married to a British citizen. The issues in the appeal arise out of the appellant’s application for a residence card on the ground of his marriage to a British national. Subsequent to the making of a deportation order (since ruled unlawful), the appellant was removed from the UK on 31 January 2011. In March 2011 in Lagos he married a British citizen with whom he had been in a relationship since 2007. He (and his wife) returned to the UK at an unknown date, after a short period in Germany. It is maintained that the appellant meets the conditions specified by Regulation 9 of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) and is entitled to a residence card.
[2] There have been sundry proceedings in respect of the application, fuller details of which may be found in the opinion of this Court : [2016] CSIH 39. Reference may also be made to the opinion of Lord Glennie in an associated Judicial Review: [2015] CSOH 158. In the Judicial Review the appellant was seeking an order that he was entitled to a Certificate of Application, which would enable him to work. The issue of whether a residence card should be granted to the appellant was not one for determination. However, in order to decide whether to grant the order sought, the Lord Ordinary considered that he required to take a view on whether the appellant would be likely to meet the requirements of Regulation 9. He expressed the view that the appellant satisfied the relevant conditions.
[3] The appellant’s application for a residence card had been refused by the First Tier Tribunal (FTT). The effect of the prior decision of this Court was that the matter was remitted to the Upper Tribunal (UT) to consider an appeal against the FTT decision on the basis of grounds upon which leave had previously been given. The UT has done so, and has refused the appeal. The grounds before the UT were as follows:
i. That the FTT erred by adopting findings from an earlier determination which had been set aside.
ii. That it had erred by applying an amended version of Regulation 9 rather than that in force at the time of the application.
iii. That the FTT had erred in taking account of the appellant’s motives for seeking residence in Germany.
iv. That the FTT erred by taking into account the brevity of the period during which the appellant’s wife worked in Germany.
v. That the FTT had failed properly to address the interests of the appellant’s child, a British and Irish citizen, under Article 8 ECHR.
Legal background
European Union law
[4] Under the Treaty on the Functioning of the European Union all Union citizens have the right to move and reside freely within the territory of the member states. Parliament and Council Directive 2004/38/EC set down certain conditions governing the exercise of that right by Union citizens and their family members. For these purposes, the member state in which a citizen exercises the right of free movement and residence is known as the “host” state. Of particular relevance to the present case are the following articles:
Article 3
“1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
Article 6:
“1. Union citizens shall have the right of residence on the territory of
another member state for a period of up to three months …
2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a member state, accompanying or joining the Union citizen.”
Article 7:
“1. All Union citizens shall have the right of residence on the territory of another member state for a period of longer than three months if they:
(a) are workers or self-employed persons in the host member state; or
(b) have sufficient resources for themselves and their family members not
to become a burden on the social assistance system of the host member state during their period of residence and have comprehensive sickness insurance cover in the host member state; or
(c) are enrolled at a private or public establishment, accredited or
financed by the host member state on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and have comprehensive sickness insurance cover in the host member state and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host member state during their period of residence; or
(d) are family members accompanying or joining a Union citizen who
satisfies the conditions referred to in points (a), (b) or (c).
2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a member state, accompanying or joining the Union citizen in the host member state, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).”
Domestic law
[5] Regulation 9 as originally enacted provided as follows:
“9 – Family members of United Kingdom nationals
(1) If the conditions in paragraph (2) are satisfied, these regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.
(2) The conditions are that—
(a) the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and
(b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.
(3) Where these regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of Regulation 13 to that family member.”
[6] This was amended by virtue of the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013/3032 (“the 2013 Regulations”), with effect from 1 January 2014, so that its terms became:
“9 – Family members of British citizens
(1) If the conditions in paragraph (2) are satisfied, these regulations apply to a person who is the family member of a British citizen as if the British citizen (“P”) were an EEA national.
(2) The conditions are that –
(a) P is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom;
(b) if the family member of P is P’s spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in the EEA State before the British citizen returned to the United Kingdom; and
(c) the centre of P’s life has transferred to the EEA State where P resided as a worker or self-employed person.
(3) Factors relevant to whether the centre of P’s life has transferred to another EEA State include –
(a) the period of residence in the EEA State as a worker or self-employed person;
(b) the location of P’s principal residence;
(c) the degree of integration of P in the EEA State.
(4) Where these regulations apply to the family member of P, P is to be treated as holding a valid passport issued by an EEA State for the purpose of the application of Regulation 13 to that family member.”
The FTT had, inter alia, applied the “centre of life” test contained within the amended provision.
The decision of the UT
[7] The first two grounds were conceded. It was common ground that the practical task of the UT was to decide (a) whether the appellant was entitled to a residence card under Regulation 9 and (b) whether he had a right to remain under Article 8 ECHR outwith the Immigration Rules. The UT quoted para 55 of Secretary of State for the Home Department v Akrich [2004] QB 756 that:
“..the motives which may have prompted a worker of a member state to seek employment in another member state are of no account as regards his right to enter and reside in the territory of the latter state provided that he there pursues or wishes to pursue an effective and genuine activity.”
Acknowledging the irrelevance of motive, the UT nevertheless considered that the reference to “an effective and genuine activity” left certain matters unresolved.
[8] The UT accepted the respondent’s submission that Regulation 9 in its unamended form was enacted to give effect to the doctrine identified in R v Immigration Appeal Tribunal & Surinder Singh [1992] 3 CMLR 358, and was to be interpreted consistently with further cases in that line of authority, including O and B v Minister voor Immigratie, Intergratie en Asiel, [2014] QB 1163, which had noted at para 51 that the residence in question had to be “sufficiently genuine so as to enable that citizen to create or strengthen family life in that member state”. The appellant’s submission that he was entitled to a residence card on the face of the regulation, by virtue of the presence in Germany of...
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